Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-21
SUPREME CURT.
yROpsis of DecisioBs Rendered at Che
Present Tyler Sitting OF the Texas
Supreme Court.
Finding in the Oaso Of G. o. Edwards vs.. j
II. Barwlse, from Tarrant County. Ac-
ton of TEespass to Try Title.

TYLER, TEX., Nov. 18.-M. j. EendTicki
vs.. James L. Watson ct al; appeal from
Navarro. Suit by appellant as the sur
viving widow OF J. M. Hendricks for the
benefit of herself and their minor children
4gainst appellee as sheriff of Navarro
isounty, and the other sppellees as sureties
on his official bond. The petition alleged
that one of appellee's deputies arrested
the husband of appellant on charge CT
horse theft, and unlawfullY shot and
killed him while he was attempting TO es.
cape. A demurrer was sustained to the
petition and plaintiff declining to
amend the suit was dismissed
This action OF the court is assigned as
error. Appellees rest their case upon
two propositions, VIZ. 1. Thet the stat
ute does not authorize an action against
the principal for the act Of his sgent.
2. That the act cf the deputy complained
OF wes not an official act for which the
law will hold the sheriff snd his sureties
responsible. Held: The court below
based its finding on the first ground and
we must concur in this construction OF
the law. The right of action for injuries
resulting in death, is wholly the creature
of the statute; and the authority for the
suit here brought, IL found at all must be
found in the written law itself. Neither
principal nor agent is named
in the statute in article 2S99 sub
division 2. Sub division l was
construed by this court in the case of the
Missouri Pacific Railway Company vs..
Scott, and we there held that it afforded
no remedy against railway company,
when the death is caused by the mere
ordinary neglect of the servants or agents
of the corporation. This law was amended
by the insertion OF the word "gross" by
act of March %, 1887, Laws Goth Leg +,
pig. A |, but the amendment being SUISSE
quent to the occurrence Of the alleged
cause OF action and has no bearing on the
question. We think 1t was the intention
of the Legislature TO impose the greatest
liability upon carriers by making them
responsible for the gross negligence Of
their agents, and a. the same time to
leave the liability of others for the
acts OF these agents as it existed st
common law. We do not pass upon the
question whether the alleged homicide
was an "official act" of the deputy for
which the sheriff could be held response
BILE. No cause of action was shown by
the petition. Affirmed. Gaines, j.
G.. 0. Edwards VS. j. II. BarWise; ap-
peal frcm Tsrrant. Action OF trespass to
try title, instituted by appellee against
appellant. Where petition in a case of
trespass to try title is in the statutory
form, as in the present case, the plaintiff
will be permitted to sdduce any compe-
tent parol evidence in order TO establish
his title, although the fact proposed to be
established By such evidence be not spe-
ci6lly pleaded. Appellant offered to prove
by the attorney of one TWombly (through
whom appellant claims) that he rs
gwombly's attorney went to the records
of sTarrant county and fsiIedl to find
any deed on record for the land in con-
itroversy, and advised Twombly to buy
the same. This evidence was refused by
the court and the ruling assigned as error.
Held: To permit 8 person not in charge
OF the office containing the register Of
deeds TO testify that no such record ex-
listed, would be to introduce an unprece-
dented and dangerous practice. The
court did not err in this ruling. It is
shown that both parties to this suit
deFaign title through the same person.
The deed of appellee was upon record at
the time of the second sale of the land
and this WAS notice to the world. NO
error. Affirmed. Gaines, J.
DsAs Paschal vs.. J. W McLendon; ap-
peal from Kaufman. There being no state
n1ent of facts in this case, the appellee files
his certificate and moves that the case be
affirmed. Held: The motion is well
taken and the same is sustained. Affirmed
on certificate. Willie, Co.
8 Taylor B. Boghsrs VS.. Nancy M. Bo-
CHARS; from Kaufman. Appellee has
fled certificate for sfirmance in this
case, there being no statement Of facts
nor brief fled by appellant herein, but it
appearing that said certificate for affirm
snce has no seal nor tie, we can not con-
slider the same. Dismissed. Willie,
G. J.
Is Belle Wagon Works vs.. Tidban,
VsnZsndt & Co.. appeal from Tarrant.
This was suit Of trial of the right OF
property, in lot of wagons in the pos
session of one Anderson, levied upon |
under writ Of attachment sued out by |
sppellees, and claimed by appellant. |
Anderson WAS dealer in wagons, agrI-
cultural implements, ETC., in the city of |
Fort Worth. 1t appears that he had |
purchased goods from appellant and had |
given his note for the same. Finding |
that he would be unable to meet his pa
per (beiDg insolventl he returned s lot of |
wagons to appellant and received therefor
the notes held by them against him. |
The notes returned Anderson by the |
appellant exceeded the price paid |
Tor the property $174 and for this amount |
Anderson executed his note to appellant. |
Appellant then returned the properly to
Anderson, who was to sell the same on
commission of 40 per cent, which was
the same profit he made before the return
Of the property. Where sales were made
On credit the notes were made payable
10 appellant and Anderson guaranteed
heir payment. The court below beld
.hst st the time Of these transactions An
1erson was insolVent, and that the same
was made with intent to hinder, delay |
and defrsud his creditors; that the
property transferred greatly exceeded in
value the Indebtedness to be cancelled |
lnder the agreement; and that
The property was subject to
.he writ OF appellees. Held: The APPEL
ant was authorized to take goods
n payment of his debt, though it thereby
lindered and delayed other creditors,
provided the amount taken was in value
IL e. doht